State Consumer Disputes Redressal Commission
Pratap R. Sawant & Another vs Suraj Naik on 3 August, 2018
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
In the matter of Consumer Complaint 09 of 2017
Shri Pratap R. Sawant,
son of Shri Raghuvir V. Sawant. ........Complainant-1
represented by his Attorney,
Complainant-2 herein.
&
Smt. Supriya P. Sawant,
wife of Shri Pratap R. Sawant. ........Complainant-2
both above residents of
House no.443/12/1, Devrai Niwas,
near Marcel Urban Co-op Bank,
Marcel, Goa.
& presently residing at
Heritage Wendys Rusticity,
2nd Floor, Flat No. S-1,
near Our Lady of Rosary Church,
Post Office N.I.O., Donapaula,
Tiswadi, North Goa.
V
Shri Suraj Naik,
Proprietor, 'Aarush Kitchens & Bedrooms',
Shop No. 10, Karim Mansion,
Behind Goa College of Pharmacy,
Panaji, Goa. .........Opposite Party
Advocate Shriram Polle appears for Complainants-1 & 2.
Advocate Gunwant Juneja appears for Opposite Party.
Quorum : Smt. Vidhya Gurav, Member
Shri Dhananjay Jog, Member
Date: 03/08/2018
2
Date: 03/08/2018
JUDGMENT
[per Shri Dhananjay A. Jog, Member ]
1. This Judgment and Order shall dispose of the complaint filed before us on 17/04/2017 against Opposite Party, a Contractor, who was entrusted with the job of renovating a bungalow belonging to Complainants.
2. Complainant's hereinunder are a husband and wife couple. Moreover, for the purposes of this matter, the husband/Complainant-1 has appointed his wife/Complainant-2 as his Attorney. Hence, for simplicity & brevity, Complainants-1 & 2 are jointly together referred to in this Order as 'Complainant'.
3. After negotiations between parties, Complainant, owner of a bungalow, awarded a contract to Opposite Party, a Contractor, to undertake and complete a comprehensive renovation of the said bungalow. The extensive and wide scope of work can be appreciated when we note that it included General Civil, Electrical, Plumbing & Sanitary, Tiling, Carpentry, Furnishing and Finishing works. The quotation for all the above work was given by Opposite Party vide his Estimate dated 03/11/2014, totalling to Rs.37,11,000/- (Rupees Thirty Seven lakhs and Eleven Thousand only). For a clear understanding of the dispute between parties, the facts, figures, dates and issues in this matter are as summarised below.
4. As both contending parties point out and as is very much relevant in resolution of this matter, it is necessary to note here that: -
a) The target completion date was 120 days after receipt of 35% of the above estimated value. and
b) The Estimate was subject to change as per the following Terms and Conditions which appear on page 4 thereof: -
1. The Estimate given is a reference point.
2. Quotation of works will be given after demolition and Civil work is done, and also on finalizing Electrical, Plumbing, Furniture drawings, with selection and finalization of materials to be used.3
3. R. A. Bill will be given after every work.
4. Joint measurements will be taken.
5. Final bill will be raised as per work done and actual measurements taken on site.
6. Time for completion of work will be 120 days from the day of receipt of confirmed work order along with advance.
7. Extra items and Provisional items will be charged as per Actuals + 20%.
8. Above quotation is valid for 15 days only.
9. Subject to Panaji Jurisdiction.
10. Mode of payments:
a. 35% advance payment along with confirmed Work Order. b. Balance payment will be as per R.A. Bill on completion of each work.
5. It is undisputed and specifically admitted that after receipt of this Estimate, Complainant effected the following cheque payments to Opposite Party. The dates referred to are those of issue of cheques. Their realisation is undisputed. We shall hence refer to these dates as those on which payments were received by Opposite Party, though practically, credit to Opposite Party's account may have occurred 2/3 days from date of each cheque.
a) Rs.6,00,000/-on 29/11/2014.
b) Rs.6,00,000/- on 12/12/2014.
c) Rs.5,00,000/- on 18/03/2015.
d) Rs.5,00,000/- on 29/09/2015.
e) Rs.10,00,000/- on 20/3/2016.
f) Rs.2,00,000/- on 18/05/2016.
g) Rs.2,50,000/- on 09/06/2016.
and
h) Rs.10,00,000/- on 23/09/2016.
The sum total of all above is Rs.46,50,000/-.
46. We observe that requirement of 35% advance of Estimated cost was almost met when the second payment {at 5.b) above} was received on 12/12/2014. (Rs.12 lakhs out of Rs.37.11 lakhs = over 32%). However, it appears that parties mutually agreed that the requirement of advance was said to have been met with the third cheque {at 5.c) above} of 18/03/2015. If that be so, the target completion date of the awarded work would be 120 days thereafter i.e. 18/07/2015, practically rounded off to end of July 2015.
7. Unfortunately for all concerned, work was neither completed by that date (31/07/2015) or even up to the date of filing of this complaint (17/04/2017) nor has it been anytime thereafter till date of this Order today.
8. This then is the crux of Complainant's grievance as against Opposite Party and that is why parties are before us. Complainant prays for refund of Rs.28,10,000/- and Rs.10,00,000/- with interest, and for compensation of Rs.7,00,000/-. He further prays for directions to Opposite Party to rectify faulty work of door frames and for return of his Sofa-set and Dining table.
9. In support of his claim, Complainant has produced a number of site photographs, listed as Exhibits D through H with his complaint. These 38 photographs have been established as having been snapped at the disputed site on two occasions - some on 04/03/2017 & others on 07/04/2017. Opposite Party accepts that these photographs were taken at the site in March/April 2017. However, he points out that his work there, which commenced in 2014, came to be stopped sometime soon after. That the photographs hence represent a belated 'picture' of site conditions. Opposite Party does not deny that various work remains incomplete at the site, but contends that this state of affairs is attributable to Complainant and not to him. Our comments on the said photographs find place at paragraph K. of our Observations and Findings below.
10. After registering his complaint on 17/04/2017, Complainant engaged the services of an Architect, one Shri S.S. Bhobe, who produced a technical report on the conditions and status of the work-site under dispute. This 5 report was allowed to be taken on record by an interim order of this Commission. We note that the report of 05/07/2017 is the outcome of the Architect's site visit of 25/05/17. Opposite Party vehemently disputes not only the contents thereof, but also questions the Architect's qualifications and capability to produce the same. He contends that the report is false and has been created with ulterior motives. That it has been produced after a lapse of many years after stoppage of work and hence cannot be relied upon. That the Architect, Shri S.S. Bhobe, is not an expert in any field. He further states (at paragraph 17 of his Written Arguments), that no Affidavit has been filed by the said Architect in support of his say and hence the report deserves to be discarded. Our comments on this are recorded in paragraph L. of our Observations & Findings.
11. It is Opposite Party's contention as per his Written Version, Affidavit and Written Arguments that Complainant has approached this Commission with unclean hands and fabricated a case against him.
12. Opposite Party's defence against charges against him is primarily two-fold:
i. That the Estimate dated 03/11/2014 was essentially a reference point and it was subject to change as per actual site conditions as would be visible only after work commenced. As an instance of such discovery necessitating major change in cost and time-frame, he points out to alleged discovery that the existing walls of Complainant's bungalow were hollow and had a plaster coating of up to 4 inches as against the standard of 1 to 1.5 inches. He further states that the Estimate was subject to Terms and Conditions enunciated at page 4 thereof and which are reproduced at paragraph 4.b) above.
ii. That major delays were caused by Complainant and there were many instances when Complainant abused and prevented/ restrained his workers from access to the site. He points to the illustrative instance of such delay by stating that Complainant took over 3 months to select tiles to be laid and contends that delay was thus attributable to Complainant and not to him.6
Such being the contentions of parties before us, we record as below, our:
OBSERVATIONS & FINDINGS A. Parties exchanged Legal Notices through respective Counsel, starting with Notice dated 03/03/2017 by Opposite Party. The same was replied by Complainant on 10/03/2017. For good measure, Complainant issued his own Notice on 27/03/2017.
B. As can be seen from the schedule in paragraph 5. above, Complainant continued effecting periodic further payments till June 9th 2016, on which date he issued cheque for Rs.2,50,000/-; almost a year after the work- completion deadline of July 2015. This brought up the sum paid till that date to Rs.36,50,000/-, almost the entire estimated value of Rs.37,11,000/-. In the hope of seeing his bungalow finally renovated, Complainant then effected a further, last payment of Rs.10 lakhs as late as in September 2016.
C. A practical solution to the impasse which had occurred by now between parties could not be found in subsequent interaction between them. As a result, work at the site did not progress. Accusations were exchanged, for e.g., that Opposite Party stopped work entirely & refused to respond to Complainant's calls. That the latter warned of usage of black-magic and of casting curses, and noisily & aggressively confronted the former at his office and at property exhibitions. At one instance Complainant is alleged to have hurled a shoe. While none of these allegations are substantiated or relevant in the resolution of the complaint before us, we refer to them since they establish the fact of complete breach of trust and understanding between parties to the point of overt hostility and enmity.
D. We note that, with TWO EXCEPTIONS, no written communication was exchanged between parties. One of these exceptions is the exchange of Legal Notices and replies thereto. However, these are documents that were created after any amicable relationship between parties had incontrovertibly ended. These documents hence show no mutual agreement of thought or purpose, but rather establish the opposite thereof.
E. The other exception referred to is Opposite Party's Estimate dated 03/11/2014. This is the only document that would show agreement on any issue or which could establish the basic terms of a contract/understanding between parties.
F. Opposite Party would like to contend that no formal written order was issued by Complainant against this Estimate and hence no contract can be 7 said to exist between parties. We do not subscribe to this view. The fact of first payment effected by Complainant and accepted by Opposite Party within a month of this Estimate and acceptance of further multiple payments thereafter, establishes issuance of an implicit Work Order to 'go ahead' on the basis of this Estimate by the former to the latter.
G. If this Estimate is thus the only understanding on record between them, and since both opposing parties rely on the same, we have to draw a comparison between the Estimate and the ground reality.... In effect, we have to determine if what had been promised in said Estimate (albeit subject to certain terms & conditions) was actually delivered ! H. Opposite Party would lay stress on consideration of the following terms of the said Estimate, listed in paragraph 4.b) above. Our findings are noted against each: -
i. Term # 1. "The Estimate given is a reference point". .......There is no dispute regarding this, and it does substantiate Opposite Party's contention that the Estimate was subject to change, both in terms of cost and time-frame quoted, depending on further additional work required.
ii. Term # 2. "Quotation of works will be given after demolition and Civil work is done and also on finalising Electrical, Plumbing, Furniture Drawings, with Selection & Finalisation of Materials to be used". .........We find that (with one exception highlighted below) no such subsequent quotation was given and hence there is no record whatsoever as to what was the escalation in cost and time-frame, if any, that Opposite Party wished to propose. Had such revised quotation, substantiated with specific and valid grounds, been indeed given in time, it stands to reason that Opposite Party may have received approval for such increase in price/ duration. The Exception referred to above: - Opposite Party did issue two quotations dated 27/02/2017 that accompanied his Legal Notice of 03/03/2017 to Complainant. However, we consider this as too little and too late; an afterthought and a belated attempt to try and safeguard one's flanks. The time to have issued such quotations should have ideally been in or about April 2015 when Opposite Party had received more than 35% as advance and was coming to grips with his work. Such quotations were to be expected at the exploratory stage of work when inherent/ latent faults at the site bungalow would start being noticed by technical hands experienced in their respective (Civil/ Electrical/ Carpentry etc.) fields. Revised quotations showing justifiable deviation from initial Estimate would then be necessitated. Extending the benefit of leeway as 8 befits be given to a sincere Contractor/worker hampered or delayed by genuine circumstances/ site difficulties, such revised quotations could have been considered timely and worthy of consideration at anytime during the entire year of 2015 or even the initial months of 2016. Quotations delivered as late as in March 2017 with a Legal Notice, when relations between parties had completely broken down, and almost on the eve of a Consumer complaint against Opposite Party have hence to be reasonably dismissed as meaningless.
iii. Term # 4. "Joint Measurements will be taken"...... This means that for the purpose of raising actual bills as against initial rough estimate, the actual work carried out is jointly measured by both parties in terms of dimensions - length/ width/ depth/ weight etc. and therefrom the final bills are raised. This is a universally accepted and practically sound method of billing for technical works, and serves the interest of fairness to both the Buyer and the Seller/Contractor. For instance, let us say that a Road Contractor quotes a price per km of laying a road and his bid is approved. Once he has done the job, the Buyer, for e.g. the P.W.D, and the Contractor jointly measure the actual length of road laid. The latter then produces his bill based on this joint measurement and is paid. However, this is a good method only provided it is followed!! In the present instance, no joint measurements were ever taken. It appears that Opposite Party never reached a stage when he could inform Complainant, for e.g., as follows: "Tiles of X square metres have been laid. You may jointly measure them with my Supervisor/mason on date........". iv. Term # 5. "Final bill will be raised as per work done and actual measurements taken on site"....... As noted in H.iii above, intermediate stage measurements were never taken and hence interim bills were never raised. Also, no final measurements took place and hence no final bill was raised (with one exception discussed against bullet below) as the said final stage was never reached. Opposite Party did issue a purported 'Bill' dated 27/02/2017 (in addition to quotations of the same date, referred to in Observation H.ii. above) that accompanied his Legal Notice of 03/03/2017. Contrary to Opposite Party's Term # 4, (refer H.iii above), this was raised unilaterally without taking any joint measurements whatsoever with Complainant. It would be hence far-fetched and unreasonable to expect Complainant to accept such bill, or for us to consider it as valid. Apart from this, the fact that this bill was raised as late as 27/02/17 means that all our observations in H.ii above, applicable to the Quotations of 27/02/2017, would apply to this belated bill too.9
v. Term # 6. "Time for completion of work will be 120 days from the day of receipt of confirmed work order along with advance". Seen together with related Term # 10.a - "35% advance payment along with confirmed work order".... The fact that Opposite Party received the first payment in less than a month of his Estimate and that he commenced work thereafter establishes that implicit Work Order was issued against his Estimate, as noted in Observation F. above. Fact of over 35% advance received by March 2015 is also established by payments listed in paragraph 5.
I. Opposite Party has attempted to make out a substantial case on the point of alleged discovery of hollow walls with 4 inches of plaster ( as against the ideal of thick walls with 1 inch of plaster) of Complainant's bungalow. He has sought to justify this as a major factor for cost escalation and claims to have discovered this very soon after commencement of work. The simple question that arises before us is, if this be so, why was this never conveyed in writing to Complainant? Opposite Party should have done so and used the fact to obtain Complainant's consent to escalation in cost and time by quoting specific figures pertaining to this in a 'Revised Estimate', which would state, for e.g., "Due to discovery of hollow walls as shown to you on site on ......date, cost of Civil works shall increase by Rs. X lakhs. Please sign below to approve". If, on the other hand, this was conveyed only verbally as claimed, it still stands to reason that such fundamental flaws (necessitating major escalation in cost/time) would have been demonstrated on site with the assistance of, or presence of, masons/skilled hands. If this was so done, Opposite Party could have examined such witnesses before us to establish this. Absence of any such effort validates Complainant's contention that no such fact was ever conveyed, and negates Opposite Party's claim of substantial cost/time increase due to this.
J. A similar reasoning applies to Opposite Party's claim that Complainant took over 3 months for the simple task of selecting tiles. Assuming this to be true, and adding this period to his commitment of 120 days (i.e. 4 months) to finish work, the entire job should have been completed in 7, 8, 9 or even 12 months beyond the promised date. The fact of the matter is that the work was never ever completed at all.
K. As regards photographs produced by Complainant (referred to in paragraph
9. above), we observe that contrary to Opposite Party's claim, work commenced not in 2014 but in March 2015 when he received the required advance. It is unclear as to when exactly work stopped altogether. Knowing that it did go beyond the promised 120 days starting from March 2015, and that Complainant continued making payments to Opposite Party till September 2016, it can be assumed to have gone on at least till September 2016. This being so, these photographs of March/April 2017 cannot be 10 dismissed as belated. Furthermore, since these photographs are of work that was of Civil/ Electrical/ Carpentry nature; unless there was a major upheaval like an earthquake/ flood/ fire or a physical demolition, the site conditions would not change substantially. Work of this nature is essentially bound to be long-lasting. This work is entirely unlike, say, that of a contract to decorate a site with flowers. Such site, photographed even one day late, would show an entirely changed scenario of wilted, drooping flowers. We hence accept the photographs as effectively portraying the condition of the work-site fairly soon after Opposite Party abandoned it.
L. With regard to acceptability or otherwise of Architect's report, (referred to in paragraph 10. above), we observe that said architect inspected the site on 25/05/2017. As in observation K. above, this date also cannot be said to be so far away as to discount the inspection as irrelevant for being belated. Opposite Party challenges said Architect's expertise in any field and states that the latter has not filed an Affidavit supporting his say. We find from documents on record however, that Shri. S. S. Bhobe is not only a qualified architect but also certified by I.T. Commissioner as "Valuer of Immovable Property (other than Agricultural lands, Plantations, Forests, Mines and Quarries". Furthermore, his Affidavit dated 22/12/2017 is on record. We hence accept the said report (and 16 accompanying photographs), as a valid technical assessment of the site conditions.
M. It is Opposite Party's contention that if Complainant really had any grievance he would have filed his complaint much before 17/04/2017, when he did. That Complainant woke up from his slumber and filed the complaint only because Opposite Party issued a Legal Notice to him on 03/03/2017. That this establishes that Complainant has no genuine case as against Opposite Party. We do not subscribe to this view. As noted in our observation at C. above, it appears that Complainant was attempting to resolve his grievance by threats of black magic and curses and by attempting to pressurize Opposite Party into action by aggressive visits to the latter's office. If Complainant was indeed doing this, without doubt he was treading a wrong path to resolve his problems. But he certainly cannot be said to have been sleeping and woken up only by Opposite Party's Notice.
N. As to the missing items of furniture viz. Sofa-set and Dining table, Complainant has not furnished any evidence of having handed over the same to Opposite Party. The latter denies having received these items, and avers that he had specifically told Complainant to remove all his belongings from the bungalow. That Complainant had complied with this, and that is how work could start. As such, Complainant has not been able to establish this charge as against Opposite Party.
11O. We have perused Opposite Party's Bill dated 27/02/2017, our findings on which are recorded in Observation H.iv above. As is clearly stated, we find that the Bill is belated and depicts unrealistic charges for work left incomplete or that was not even started. The Bill totals to Rs.38,35,886/-. Opposite Party admittedly received a total amount of Rs.46,50,000/- from Complainant. Without admitting authenticity of this Bill, but assuming, for a moment, Opposite Party's claim regarding the same, it follows (and he admits!) that the difference between the 2 sums above, viz. Rs.8,14,114/- remains with him. He has no convincing explanation as to why he did not utilise this amount to carry on with the work and bring the site status much more nearer to completion stage than the sorry state he has left it in. Rather than stopping work and coercing Complainant to pay a further Rs.10,00,000/- in September 2016, this is what he was expected to do. His say that Complainant (a person who paid Rs.10 lakhs over and above the estimated value without receipt of any timely bills), stopped entry of men and prevented work at the site defies logic or common sense.
P. We find, upon inspection of Complainant's claims, cross-referenced by Opposite Party's Estimate of 03/11/2014, Technical report of 05/07/2017, photographs of site conditions, (and, in some cases, admission by Opposite Party), that status of each area of work, listed in the same order that they appear in the Estimate, is that: -
i. Civil Work done is mainly that of demolition and dismantling. The little new work done such as partial plastering, is defective. Door and window frames installed are misaligned.
ii. Electrical Work - No work is done except ripping out of existing wiring/ switches/ fixtures.
iii. Plumbing & Sanitary - No work done.
iv. Tiling is partly done, but the laid out tiles are inadequately protected. v. Carpentry - No work done.
vi. Furnishing - No work done.
vii. Finishing - No work done.
In consequence of all above Observations & Findings, we conclude that Complainant, a Consumer who paid for the Service of renovation of his bungalow; who further has a continuing Cause of Action in that the renovation was never completed; has thus suffered Deficiency-in-Service by Opposite Party, who undertook but miserably failed the task due to his own acts of omission or commission.
Complainant is thus entitled to relief under the Consumer Protection Act, and we hence pronounce, as follows, our: -12
ORDER I. The complaint is partly allowed.
II. Opposite Party is directed to refund an amount of Rs.28,10,000/-
to Complainant with simple interest @ 9% per annum thereon from 23rd September 2016 (being the date of last payment by Complainant to Opposite Party) till date of payment in compliance with this Order. Said amount represents such items in Opposite Party's Estimate of 03/11/2014 (which is the basis of understanding between parties), that were left incomplete or not even commenced.
III. Opposite Party shall further refund sum of Rs.10,00,000/- to Complainant with simple interest @ 9% per annum thereon from 23rd September 2016 (being the date of this payment made by Complainant) till date of payment in compliance with this Order. This is the sum paid over and above estimated cost without receiving any measurements/bills, and after which Opposite Party abandoned work.
IV. Opposite Party shall also repair the improperly aligned door frames at the suit site within 45 days from date of this order.
V. Complainant is awarded compensation of Rs.1,00,000/- for his mental torture and harassment at being denied peaceful living in his own bungalow due to site conditions that have rendered it uninhabitable in spite of effecting much more than agreed payment.
VI. Complainant is further awarded cost of Rs. 20.000/ -.
VII. Opposite Party shall comply with all above directions within 45 days of receipt of this order.
[ Shri Dhananjay A. Jog ] [ Smt. Vidhya Gurav ]
Member Member
QV